Tuesday, February 12, 2013

Captain
Graham began giving weekend seminars for the California Maritime
Academy’s Continuing Education Department to those interested in the
maritime matters in 1975, while on leave from the Navy to attend law
school. The most popular topic over each sixteen-hour session on
everything encompassed by international maritime law was “piracy”.
Over the intervening 35-plus years, the pertinent law has evolved in
some respects and changed not at all in others. What follows is the
second part of Captain Graham’s own legal “take”, his own opinions, his
own view of this precinct of the maritime world.

I
began giving weekend seminars for the California Maritime Academy’s
Continuing Education Department to those interested in the maritime
matters in 1975, while still on excess leave from the Navy to attend law
school. The most popular topic over each sixteen-hour session on
everything encompassed by international maritime law was “piracy”.

As
I had already mastered criminal law and was occasionally assigned as an
assistant prosecutor in military justice matters when on temporary duty
as a JAG student, I did not then (nor now) find much romance in sea
rogues whose stock in trade are the common law felonies of murder,
arson, rape, mayhem, kidnap, and robbery. None of those crimes are made
glamorous simply because the platform for their commission happens to be
on the water. No doubt I also diluted audience enthusiasm by addressing
the topic of “maritime terrorism,” which I characterized as a
phenomenon waiting to happen. In 1975, no one wanted to hear about
terrorism from the sea and the laws that might apply; they just wanted
more on pirates.

Over the intervening 35-plus years,
the pertinent law has evolved in some respects and changed not at all in
others. What follows is my own legal “take”, my own opinions, my own
view of this precinct of the maritime world. Hopefully it is
sufficiently supported by legal theory, practice, logic, and facts. In
any event, it is supported by my convictions and constant reinforcement
to audiences nationwide as well as audiences from several nations that
border the Pacific Rim.

Historical Definitions
It
has been said that, “Piracy as a ‘profession’ is one day younger than
seafaring,” and piracy’s persistence in human history has led to its
acknowledgement as a crime against the law of all nations. Consequently,
early on in the development of international law, there was near
universal consensus that any nation could take action against pirates,
i.e., assume jurisdiction as a matter of customary international law
against “hostis humani generis” or the enemies of all mankind.
This ancient legal premise was further buoyed by the 17th-century theory
that in asserting jurisdiction to act against pirates, nations were
also exercising “collective self-defense”, a newly evolved legal concept
among the nation-states of Europe.

Apart from universal jurisdiction in efforts to combat piracy, nations
could also refer to their own domestic or internal laws as a basis to
proceed, and actions could be taken on the basis of criminal or civil
jurisdiction, but the better accepted view and historical practice have
been to emphasize the role and responsibility of the world community in
taking legal measures against piracy.

In the English
common law tradition brought to Colonial America, piracy consisted of
committing acts of robbery and depredation on the high seas (a
“depredation” being an act executed by force, violence or the
demonstration of the intent to use force or violence against persons or
property), which, if committed ashore, would amount to a felony. Thus
our common law contemplated acts done with a felonious intent. When the
site of such criminal actions was the open ocean or the world’s highway,
they were deemed to be committed by felons acting with a sense of
universal hostility against all humanity and commerce indiscriminately.

Since
a “felonious intent” was necessary to constitute the crime of piracy,
an individual acting in good faith under a grant of authority could not
be guilty of piracy. Thus the first and often misunderstood exception to
piracy emerges… privateering. Whereas nations were willing to act to
suppress piracy, many nations practiced and encouraged privateering,
which was a formal speculative business venture. Commonly referred to as
the “right to make private war” on select nations, privateering was
based on a governmental grant of authority such as a letter of marque
and reprisal, a commission or warrant, and essentially allowed maritime
commerce raiding against targeted countries. Sponsors, investors, and
benefactors of privateering involved the “first citizens” and ruling
classes of most nations. In the United States, two signers of the
Declaration of Independence were well known privateers. Early in our
national history, Congress granted letters of marque freely under the
authority of the Constitution. However, private war at sea is also
disruptive to world commerce and so by 1856, the community of nations
was ready to renounce the right of privateering in the Declaration of
Paris with notable exceptions being Spain, Mexico, Venezuela, and the
United States.

Lack of Precedent
In the
young United States, one of the first acts of Congress in April 1790
declared that any person who committed on the high seas or any basin out
of the jurisdiction of any particular nation, murder or robbery or any
other offense, which if committed in the United States would be
punishable by death, was a pirate and should suffer death when brought
within any US territorial jurisdiction.

Other 18th and
19th Century federal statutory authorities state that seizing a vessel
and running away with it with a felonious intent is piracy (note no
element of force or violence required); attempting to corrupt the master
of a vessel to go over to piracy was unlawful; it was illegal to
combine or confederate with pirates; and finally Congress pronounced it
illegal to correspond with pirates. All were well-intentioned
legislative efforts to militate against the scourge of piracy in
America, but are meager artifacts to take decisive legal action in the
21st Century.

Historical case law in the United States
concerning piracy is also spartan. A jury in 1819 had the privilege of
deciding whether someone was a pirate; the Supreme Court provided a
definition of piracy in 1820; while the last case in almost 150 years
was actually a privateering case at the start of the Civil War held in
New York City in which the jury deadlocked. Now, recent circumstances
have forced a new judicial look at our arcane authorities. Late in 2010,
two different judges made conflicting rulings in two different cases in
federal district court against Somali nationals charged with piracy for
attacking US naval vessels. Whether the rulings will be reconciled at
the federal appeals court level or whether the cases ultimately
percolate up to the Supreme Court for resolution, the symptoms causing
the disparate district court rulings are the real issue. In one
instance, the federal judge determined that the existing piracy statute
must be interpreted as it was meant when enacted in 1819 and the actions
of the Somalis did not rise to the level of piracy, while on similar
facts, the other judge concluded acts of piracy had been perpetrated.

Reasonable
people and judges disagree all the time…they should not, however, have
to base the legal fate of public sea service members and commercial
mariners on stale, vague, and historically obscure authority. It is
clearly time for the United States to update existing law and seek new
authorities to counter the upswing in piracy worldwide. Sadly, I am on
record for the last 37 years as making this exhortation to the
collective deaf ears of our Nation’s lawmakers.

Watering Down the Definition
As
noted above, legal authority against piracy also includes more than
proceedings against the participants. There has been the potential under
select US criminal statutes (and mirrored in admiralty law) to capture
and seize a vessel involved in a piratical or other legally offensive
venture and seek its condemnation, forfeiture, and judicially ordered
sale in a prize court. This process, in parallel with the condemnation
of cargo found aboard the vessel, is equally arcane, unlikely, and
irrelevant to the type of piracies practiced in the world’s hotspots. (A
similar process to be conducted under the law of war received very
limited use by the US, even in World War II.)

Customary
international law, including criminal jurisdiction over pirates, gave
way to multi-national treaty law beginning with a series of United
Nations Law of the Sea conferences and conventions. The latest treaty
addressing piracy was the third United Nations Convention on Law of the
Sea (known as UNCLOS III), which was signed in 1982 and became effective
in 1994. Articles 100-107 deal with controlling piracy and the
obligations of signatories in combating it. Article 101 of that
Convention contains a consensus definition of piracy that should have
facilitated the universal war that all nations have declared against
piracy. Regrettably, it does not.

The majority of the
world community chose a narrow view of piracy in Article 101, requiring
three elements that serve as impediments to resolute action by
participating nations. First, the illegal acts of violence and detention
must be committed for private gain. Therefore, kidnap, murder,
intimidation, etc., committed at sea where the motive is public
attention or political statement (such as the celebrated 1961 case of a
Portuguese luxury liner hijacked near the Dutch Antilles) cannot by
definition be piracy. Secondly, there must be two vessels or craft
involved. Consequently, otherwise piratical acts, including mutinies,
which are staged aboard one vessel only, are excluded. Finally, the site
of the piracy must be on the high seas or some other location outside a
nation’s jurisdiction.

This constituent part of the
definition simply fails to account for the site of most piracy today,
i.e., conducted within the territorial waters of many nations. These
three inherent defects in the majority’s definition were made for the
sake of political expediency and compromise. However, the loopholes
created by the language of Article 101 have permitted acts (when
committed on the platform of an underway vessel) such as nations
protecting active insurgents and terrorists, destruction of life and
property in the name of “national liberation”, and the commission of
random acts of violence having colorable political overtones, all to be
untouchable as “piracy” per se.

Next month I’ll discuss the ramifications of UNCLOS III and its effect on piracy.

Customary
international law, including criminal jurisdiction over pirates, gave
way to multi-national treaty law beginning with a series of United
Nations Law of the Sea conferences and conventions. The latest treaty
addressing piracy was the third United Nations Convention on Law of the
Sea (known as UNCLOS III), which was signed in 1982 and became effective
in 1994. The United States has not ratified the UNCLOS III Convention,
although most of the community of nations did, and the US opposition to
some of its terms had nothing to do with piracy definitions and
authorities.
In the years since the Convention became
effective, the US has announced that it considers most of UNCLOS III to
be generally declarative of the law of the sea and the division of the
oceans to the point of being a statement of new customary international
law. Although this unusual stance theoretically preserves the
sovereignty of the US in going its own way when desired, it has diluted
the legal posture of the Nation when dealing with piracy. Rather than
underscoring the right of the United States to deliver a clear, modern
definition of piracy on its own unilateral terms (or even announce
similar to Supreme Court Justice Potter Stewart‘s vintage comment on a
thorny legal definition of pornography “that you know it when you see
it”), any discussion of US observance of the terms of the Convention
always begins with the caveat that our Nation is not technically a party
to UNCLOS III.

To augment the international
community’s collective response to rising threats at sea, the Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA) was drafted in Rome in 1988, entering into force in
1991. SUA seeks to prohibit violent and illegal attacks against vessels,
property, and embarked personnel, covering acts that may not fall
within the UNCLOS III Article 101 definition of piracy. In fact, SUA’s
prohibitions are against “unlawful and intentional acts” which would
capture armed robbery as well as traditional piracy, though not by name.
Many members of the impacted world community have not, however, become
members of the SUA Convention.

To illustrate the
unhappy dichotomy that can result from imperfect and deficient
international conventions, consider the following hypothetical:
You are the Master of a US registered luxury cruise ship operating
between the Port of Long Beach and Hawaii. On the high seas en route to
Hawaii, you are informed that an “Eco-Admiral” and two others from the
“New World Ocean Order” – all armed with pistols – have commandeered the
passenger section of the vessel in the name of “All Creatures of the
Blue Planet” and “The People of the United States”. While the passengers
are being held hostage, you are assured that no harm will ensue if the
cruise ship heads for a Mexican port. The Eco-Admiral informs you by
phone that he has no intention of storming the bridge by force and that
he is fully aware that he will probably be arrested when the vessel
reaches Mexico, but that this would simply underscore his cause to “all
creatures of the Blue Planet” and the “People of the United States”.
Prior to this unhappy episode, you had exchanged courtesy signals with
an Australian destroyer ten miles off your port quarter. Your radio
shack still remains under the cruise ship’s control and the Radio
Officer apprizes the warship of the situation. What result? What can you
as Master expect?

As the Master, you may or may not
know whether the UNCLOS III Article 101 definition applies to your
shipboard situation and controls the fate of your passengers and vessel.
Is the activity “piracy” under one international authority and not
under another? Even if you as Master conclude that your training and
education allows proper legal characterization, is it moot if the
government of Australia (which thankfully has a warship in the vicinity)
has a different view of the legal world and the pertinent conventions?
Remember a durable maxim in this area of international uncertainty, “One
man’s terrorism [or piracy] is another man’s freedom fight.” The lack
of clear and comprehensive world consensus on piracy recalls another
maritime maxim, “An incident at sea can ruin your entire day.”

Another
initiative in the effort to combat piracy springs from the
International Maritime Organization (IMO), a specialized agency of the
United Nations headquartered in London with the mandate to set standards
and promote safety at sea. Beginning in 1998, IMO’s long-term
anti-piracy project involves a cooperative framework of education,
training, and incident reporting by member countries that enter into
regional agreements. IMO acts as the clearinghouse for this piracy and
armed robbery information and has issued its own circulars such as
MSC.1/Circ.1333 “Recommendations to Governments for Preventing and
Suppressing Piracy and Armed Robbery Against Ships”; MSC.1/Circ.1334
“Guidance to Shipowners and Ship Operators, Shipmasters and Crews on
Preventing and suppressing Acts of Piracy and Armed Robbery Against
Ships”; as well as other guides on vessel security alert systems, an
investigatory code of practice, and measures to prevent the registration
of phantom ships. These “how to” guides offer self-help countermeasures
and presume true international law enforcement measures against piracy
will continue to be infirm. However, it must be observed that IMO is not
empowered by the UN to interdict piracy through any direct action. As a
landmark 2008 Rand Corporation report entitled “The Maritime Dimension
of International Security” opines, “The best that can be hoped for is
the rational management of threats within acceptable boundaries.” This
thought underlies a “less than global approach” by impacted nations.

Pirate Reporting Center
Another
organization recording pirate attacks, raising public awareness
including transmitting real-time warnings, and helping to trace vessels
lost to their attacks is the International Maritime Bureau’s (IMB)
Pirate Reporting Center. This nongovernmental organization was
established in 1992 in Kuala Lumpur, Malaysia and utilizes the
definition that piracy is “an act of boarding any vessel with the intent
to commit theft or any other crime and with the intent or capability to
use force in furtherance of that act.” The IMB scope is therefore
broader than UNCLOS III and cures both the “situs problem” of Article
101 by including violence against a vessel, property or persons within a
nation’s territorial waters as well as 101’s requirement that two ships
be involved. Even though a relatively new association, IMB has
rightfully gained a well-established niche as another mechanism to help
control piracy worldwide.

Regional agreements are
coming of age as yet another weapon in the arsenal. Acting upon the IMO
model, the Regional Co-operation Agreement on Combating Piracy and Armed
Robbery against Ships in Asia (RECAAP) was initiated by 16 Asian
countries in 2004. In 2006, RECAAP was expanded with an Information
Sharing Center (ISC) in Singapore, a hot spot of Asian piracy. A similar
IMO-type regional agreement is the 2009 Code of Conduct Concerning the
Repression of Piracy and Armed Robbery Against Ships in the Western
Indian Ocean and the Gulf of Aden concluded in Djibouti. Members not
only share information but also agree to apprehend and prosecute pirates
and armed robbers and care, treat, and repatriate victims of their
crimes.

Model legislation has also been prepared as an
antidote for existing gaps in international law that fail to control
piracy. Developed for IMO use, this legislation could also establish
principles for uniform vessel registration, penalize the purchase of
pirated property, and further discourage the buying of hijacked vessels.
However, the best model legislation remains just a model unless
adopted, and, until adopted and enforced by a plurality of
jurisdictions, its goals remain lofty but its implementation
ineffective.

In the world legal dialogue regarding
piracy, the United States should be a leader. Sadly, it is not. Not to
trivialize the role of the US, (especially in effecting regional naval
patrols with such high visibility results as the rescue in the 2009 M/V
Maersk Alabama drama or the 2012 SEAL Team recovery of Americans held
hostage by Somali pirates), but there is a penchant for very passive
leadership in advancing the role of the law in making participation in
piratical ventures too risky to consider. The US signs working
agreements with allies but doesn’t direct the path forward in the
international legal arena. We deliver suspected pirates for prosecution
to surrogate venues like the former British colony of the Seychelles,
for example. Maritime terrorism has co-opted the focus of the United
States, and, unfortunately, the result is life at sea in the grey haze
of legal insufficiency and poor understanding of arcane authorities.

Russian Response
By
contrast, Russia appears far more resolute in the eyes of the world in
undertaking legal response. (Ironically, this stance also has the effect
of revitalizing Russia’s naval presence far from its traditional
operating areas in the Post-Cold War era despite fiscal austerity).
Russian military forces have successfully recaptured hijacked vessels,
killing and wounding Somalis without hesitation in the process, and
brought the surviving pirates to Moscow for prosecution. Similarly,
Russia’s UN ambassador has introduced resolutions to the Security
Council requiring a study on ways to enhance and enforce international
legal response to the threat, building upon earlier UN announced
sanctions and the authorization for third party pursuit of pirates into
Somalia’s territorial waters.

In 2009, the Security
Council had encouraged nations with a stake in the continuing menace to
“conclude special agreements or arrangements” with countries bordering
the troubled area. However, Russian diplomats note the inability and
reluctant of those neighbors to assume the lion’s share of imprisoning,
investigating, and prosecuting pirates and sea robbers. Russian
initiatives in ultimately setting up national and international forums
to try and punish pirates have been met with favor by several maritime
powers, but the UN has been slow to act on them. Meanwhile, the posture
of the United States at the UN on the issue of piracy has been bluntly
characterized as “noticeably out to lunch.” The US is in no danger of
being remembered on this international issue similar to Andrew
Jackson’s, “One man with courage is a majority”. As difficult as it is
for a former Cold Warrior to concede, I think the laurels for courage at
this juncture go to our former adversaries.

The
diplomatic posture of America’s ally, Britain, has been nothing short of
incredible, especially in light of its maritime history and proud
reputation for interdiction of piracies globally. Certainly Britain is
an active participant with multinational coalition forces afloat in the
waters around the Horn of Africa and the Gulf of Aden. Nonetheless, as
incongruous and outrageous as it may seem, the British Foreign Office’s
direction to the Royal Navy is not to detain captured pirates inasmuch
as such actions could violate the human rights of detainees. Because
pirates returned to their country of origin could potentially face death
under Islamic law for murder or theft, the pirates could seek asylum in
Britain. A New York Times editorial labeled Britain’s stance a
“curiously pathetic approach to piracy.” What Britain has actively
pursued is to utilize its former colony of Kenya, Somalia’s neighbor, to
imprison and try pirates, which worked for a while, but in mid-2010,
Kenya announced its legal system was over-taxed and its prisons already
full. It became apparent that Kenya did not want to appear puppet-like
in its criminal justice system responses.

The same
sequence of events is now taking place off the Southeast Coast of Africa
in the Seychelles. At the start of 2010, there were approximately 700
pirate detainees in 12 countries, including Somalia itself.
In sharp contrast to Britain, there is minimal energy spent balancing
the merits of human rights dilemmas or housing of pirate prisoners in
the People’s Republic of China. Once known for populating the ranks of
sea rovers in Asia, China’s current measures against pirates are swift
and lethal as reported both in the media and in legal seminars I
conducted for the country’s ship pilots.

Next month I’ll discuss the level of cooperation and trust, or lack thereof, among countries seeking to reduce piracy.

In addition to the
failures and delinquencies of individual nations, described in previous
installments, another legal impediment to expeditious interdiction of
pirates is the lack of trust between neighboring countries. Although
sharing a seaborne common scourge, coastal nations may default to
enforcing their territorial sea claims by refusing to allow the military
forces of another to chase and pursue pirates across a national
maritime demarcation. There are ample contemporary illustrations where
the presence of foreign naval vessels in another’s territorial waters is
deemed more abhorrent than the pirates being chased.
As
noted, at this time there is a multinational initiative among the
world’s navies in fighting pirates. Squarely within their maritime
mission and in the best tradition of sea power keeping the world’s sea
lanes open, an international naval task force with 25 participating
countries patrols in the Indian Ocean and the Gulf of Aden. It is a
wonderful international cooperative venture. However, the insurmountable
issue is that there are one million square miles of ocean for the 60-90
participating vessels. It may be a rhetorical and provocative question,
but how long before the multinational parties now cooperating come to
the same policy conclusion of India’s Navy, i.e., it’s not worth the
effort. With only 8 percent of India’s trade carried by Indian-flagged
vessels, it’s a cost-benefit decision not to spend limited resources
against pirates. With the US-flagged merchant fleet worldwide at only
191 vessels carrying 2 percent of the total world’s tonnage, no GAO-type
“dollars and cents” decision would support our military effort to this
end. Even though we don’t seem overly concerned about debt and military
spending in this country, the fact remains that the United States
doesn’t have many vessels regularly at risk off Somalia, and could very
well look at India’s posture as a cue. While not meant to be
mean-spirited or to offend members of the world’s uniformed sea
services, the international naval task force as presently deployed is in
my opinion a gesture only. (A thought I have been unable to transcend
is why isn’t the international naval task force simply searching each
and every vessel coming in and out of Somali waters thereby ultimately
reducing the area needing to be patrolled?)

In the
passionate legal opinion of one blogger in a New York Times debate,
“…one of the oldest and most uncontested precedents in international law
is that piracy is a hanging offense. This is a traditional legitimate
means of reaction to piracy. All international powers connected with the
Caribbean in the 1600’s and early 1700’s executed pirates… This is an
example of concrete international law which solved a problem of
lawlessness.” Summary execution of captured pirates would probably be
the disposition of choice by most of the public. What has changed since
the 1600’s? What legal impediments are influencing decision-makers? In
short, why is summary justice a non-start?

Going back
to UNCLOS III, Article 107 identifies vessels that are entitled to seize
on account of piracy and states:
“A seizure on account of piracy may be carried out only by warships or
military aircraft, or other ships or aircraft clearly marked and
identifiable as being on government service and authorized to that
effect.”

It is very clear that the world consensus on
that point was that public craft, i.e., warships and other military
aircraft or vessels in government service, were solely sanctioned. Why?
The answer involves several related issues. First, merchant vessels'
crews are untrained to handle weapons, especially weapons capable of
responding to sophisticated firepower brought to bear by pirates using
ransom money to purchase weaponry like rocket-propelled grenades and
AK-47s. Secondly, the worldwide merchant marine industry does not want
their mariners to be armed, even if that would be the option most likely
selected by the world’s thinly stretched navies and their commanders.
People going to sea commercially want protection, not to become
combatants themselves. Mariners are few in number aboard modern ships
and the trend in manning is always to reduce, not add more to the ship’s
crew complement. Next, arming merchant vessels arguably changes their
status under international law. If serving as gun platforms, merchant
vessels could assume the attributes of a warship in the perspective of
an anxious coastal nation and might then jeopardize their sacred right
of innocent passage through that nation’s territorial waters
particularly if transit was interrupted to interdict pirates. Would such
vessels also then be required to engage in hot pursuit of a pirate
vessel or utilize the UN provided authority to go after pirates into the
national waters of Somalia? Time is of the essence in all things in the
merchant marine industry and performing some sort of transformation of
all merchant vessels into warships does not contemplate the drivers of
time and operating schedules that keep commerce in motion on the world’s
highway. Constructing a state of the art brig within the limited
operating space aboard a merchant vessel is unlikely for many reasons,
not to mention the anticipated outcry from organized labor. The Masters
of vessels may exercise great disciplinary authority over crews
voluntarily on board, but that does not make them wardens empowered to
operate a prison ship. Finally, and perhaps the most controversial point
among mariners who have been on the business end of piratical
activities, is that raising the threat bar by taking armed measures and
exercising summary justice may cause pirates to become more brazen in
attacking and more likely to use deadly force. While the policy of any
impacted nation can be to out-terrorize the threat encountered, any
policy involving active lethal force should be executed to that end by
professional military and/or security forces.

There is
legal precedent and a successful model for an embarked armed guard both
in our national experience and in international law. Roughly one month
before Pearl Harbor, the President of the United States decided that the
safety of American merchant vessels required their defensive arming.
German submarines by that time had already torpedoed US warships
performing convoy duty, and, while neither President Roosevelt nor Adolf
Hitler wanted to characterize such acts as constituting an act of war,
the risk to unarmed commercial vessels was deemed too great not to
defensively arm them in a time of peace. Under well-established law of
war, a neutral may arm itself and take defensive measures when a viable,
continuing threat has been established. Of course, when the US did
enter WWII shortly thereafter, gun tubs were being manned by the US Navy
Armed Guard. (The Armed Guard had a distinguished record in both
theaters of the War and is particularly famous for successes in the
Battle of the Atlantic.) As asserted, merchant mariners do not want to
“fight the ship”, but if the cost of doing business can absorb the cost
of their presence aboard, the lawful presence of a military armed guard
may be more than a deterrent, save lives of those threatened, and
actually reduce the threat in a real sense. (Paying for an armed guard
option is certainly more palatable than a current proposal to levy a
“piracy tax” on all goods being shipped by sea and then use the tax
revenues to pay pirates not to attack maritime commerce, at best a
repugnant maritime “social engineering” scheme condemned to abuse and
failure.) If a routine, deadly threat to flag states is on-going, would
not a contingent of armed guard aboard that nation’s vessels entering a
dangerous travel corridor be more cost-effective than operating fleets
of capital ships for long deployments, potentially patrolling a million
square miles where pirates may simply not be operating at any given
time? This historic model certainly deserves more dialogue than it has
received to date.

I am personally a big fan of the
armed guard approach and here is why. In 1982, I was assigned as the
Navy JAG Reserve attorney for the Military Sealift Command, Pacific (MSC
PAC). At that time, MSC ran special purpose vessels such as civilian
manned transports for military cargo; communications and cable ships;
observation vessels, etc. within the operating area of the Pacific
Ocean, particularly the Western Pacific. These lumbering mostly
white-hulled vessels made good targets for pirates in the straits
& shallows of Asia. We had even re-designated their military
hull types to our private amusement as “LSMTs”: Large Slow-Moving
Targets. The then standing MSC protocol in essence directed that if
boarded by pirates, the crew was all to go to a safe hold, chain
themselves in, and let the pirates take anything they wanted aboard.
Such an op order could also have been characterized as an open
invitation for lawless sea rovers to plunder MSC PAC platforms. By 1984,
MSC had been victimized enough and the institutional philosophy changed
to having both uniformed and civilian ship’s officers trained with 9mm
pistols and sawed off shotguns. This was supplemented by training crews
to use high pressure fire hoses as an active countermeasure which in
turn was supplemented by unofficial self–help measures, e.g., nothing
says deterrent like an empty beer bottle filled with sand (preferably
wet) and dropped on the head of a pirate climbing up the line attached
to the grapnel which was hooked over the railing. These and other
physical countermeasures were certainly not rocket science, but they
worked. Attacks against MSC PAC vessels dropped because there were other
targets offering no resistance and PAC vessels now enjoyed the
well-deserved reputation of taking on pirates.

Of
course, the use of afloat private security forces hired by owners and
operating companies has been going on for some years now. They have a
very successful track record as a deterrent. In fact, statistically they
are the best option at this point in time. As reported in the maritime
press in October and December 2011, no merchant vessels with armed
guards aboard have been overcome (as yet) by pirates. To my knowledge
these statistics are still holding true. Who’s in the private armed
guard trade already? There are Russians readily for hire and there are
several “Beltway companies”. In fact, if an Internet search is made on
the topic of armed guards, there will be many display as well as pop-up
ads for companies in Maryland and Virginia. While not endorsing
individual business entities, commercial vessels which employ effective
passive anti-piracy measures designed to deter attacks through the
presence of private armed guards (leaving active counter-measures to
those military forces and vessels currently empowered by international
law), will effectively reduce the threat and potential harm to persons
involved in the business of going to sea.

One final
point on the inability of the community of nations to exercise swift
criminal justice is the “legal lifecycle”. A practical problem is that
the justice system does not end with the appearance of pirate defendants
at the bar of justice in most countries. Presuming the likelihood of
convictions for murder, robbery, etc., adjudged international felons
will certainly receive sentences in the range of ten to twenty years. As
international prisons are non-existent per se, will the reward for
capturing a pirate be the legal obligation to accommodate convicted
pirates in prison for decades? “Catch and release” sadly becomes a more
fiscally sound option in a world of limited national resources.

It
is the opinion of knowledgeable leaders, diplomats, and international
commentators that legal measures and naval operations against pirates
will not solve the specter of sea robbers off the Horn of Africa. The
root causes of piracy in this hot spot can only begin to be addressed
and abated by the restoration of strong, effective civil government,
legitimate employment opportunities, humanitarian aid, social order, and
domestic security. Similar to the likelihood of the lengthy prison
sentences warranted by the crimes, the changes suggested are probably a
20-year minimum undertaking requiring concerted and coordinated
international effort.

Next month I’ll address the
connection between piracy and maritime terrorism, and how sovereign
nations and the IMO are reacting.

To introduce the topic of the law relating to maritime terrorism, I have been reading the following passage to audiences from Outlaws of the Ocean by G.O.W. Mueller and Freda Adler since discovering it in 1985: “The pirates of old were terrorists. Not only did they seize ships and all persons and property aboard, not only did they murder, rob, and rape, but they also did so by creating fear and panic among their intended victims and seafarers everywhere. When a pirate ship approached a merchant vessel, the dreaded skull and crossbones, the Jolly Roger, or similar flags were flown from the mainmast. All the pirates were topside, dressed in fear-inspiring, grotesque outfits. They would make a deafening noise, with drums, trumpets, the rattling of chains, cutlasses and sabers, firing guns and pistols, emitting fierce battle cries. When the victims were frightened, the battle and plunder were half won.”

This memorable passage is insightful in making the connection between piracy and maritime terrorism and supports the conclusions made hereafter in this article. As a poignant footnote, it should be recalled that “black” remains the fashion color of choice for those in the trade of terrorism, having similarly been used with great effect by “The pirates of old…” The various designs of the black Jolly Roger flags used by notorious pirate captains more often than not portrayed the stock in trade deadline, demand, or ultimatum shown as the allegorical hourglass juxtaposed with a skull or severed body parts.

Until recently, the criminal codes of most countries did not even address terrorism, much less maritime terrorism. Students of history will remember there was a time toward the mid-19th Century when individuals who claimed allegiance to no nation and wanted to disrupt modern civilization went around the globe and, as anarchists, threw bombs and committed assassinations. Bombings of facilities and railroads became rather commonplace, but the result was domestic legislation against disruption of railroads, etc., and no unified international response.

A working legal definition of terrorism was slow to mature. The WWI Era had produced, “Terrorism is viewed as stateless crime directed against all [nation-] states.” When the League of Nations drafted its Convention for the Prevention and Punishment of Terror in 1937, only one nation ultimately adopted it and its definition of “criminal acts against a state and intended or calculated to create a state of terror in the minds of particular persons or the general public.”

Terrorism instead became the precinct of writers of fiction and thrillers with movie plots occasionally staged in the maritime domain. INTERPOL, the International Chief of Police Organization, assumed a modest law enforcement role by promoting a number of bilateral agreements for the exchange of intelligence and technical assistance against terrorists, but, on balance, the world community just didn’t think much about terrorism or maritime terrorism other than the occasional airplane hijacking.

In my graduate seminars and undergrad international maritime law classes, I felt obligated to present the concept of maritime terrorism following any discussion of piracy. It was somewhat of a “John the Baptist, voice crying in the wilderness” message that the potential loomed for an over the horizon maritime threat. To relate the threat in more familiar terms, I read the working premise of an educational film making the college rounds, “If You Were The President”:

“Dawn – somewhere in the North Atlantic. Terrorists hijack an oil tanker with 30 crewmen aboard…loaded with enough dynamite to destroy the ship. The tanker moves slowly into New York harbor and drops anchor off the tip of Manhattan. The terrorists threaten to kill their hostages, dump the oil, and blow up the tanker and half of lower Manhattan unless their demands are met.”

To enhance the message, I also conjured up three maritime terrorist scenarios for consideration. (I thought they were all products of my imagination until a well-read undergrad advised me that one was the plot of an Alastair McClain novel). The potential for much mischief in the maritime world would follow from any of my three simplistic examples:

1. Sabotage of a connecting pipeline from a deep-water roadstead to the on-shore terminal. The result? Mass media coverage; minimal risk; potentially devastating environmental consequences; and collateral punishment of a multi-national corporation.

2. Threatening to blow up an offshore occupied platform unless some political accommodation was made or a monetary extortion was successfully effected. Loss of life coupled with a potential $2 billion dollar structure at risk were negotiating chips for terrorists who didn’t even need to be near the site to advance a real threat.

3. Without warning a near shore maritime target is totally destroyed. Terrorists claim credit after the fact and threaten a similar fate for maritime targets in the area. A paralyzing fear results among the local maritime industry workforce, who foreseeably does not choose to suffer indiscriminate injury and simply do not report to the waterfront, effectively closing an important port.

Following the twin truck bombing of US Marine barracks in Beirut, Lebanon (1981-1983), the military legal community received anti-terrorism training and was expected to provide guidance to military commanders. The terrorism threat was considered entirely land-based with the only maritime scenario being an ultra-light as a vehicle for deploying a tactical nuclear weapon in the direction of a super-carrier off the coast of a Middle Eastern nation. As this didn’t occur, the threat didn’t seem real. Military maritime targets were, in fact, being victimized at the time, but again they were large, slow-moving military cargo hulls in the Straits of Malacca and the legal premise involved was asserted to be piracy and not maritime terrorism. At that time, the marine environment was otherwise generally thought to be a terrorist-free zone.

In August, 1984, the world witnessed the first “modern” instance of maritime terrorism when the Red Sea was mined indiscriminately and no nation took credit. The mines were at first thought to have been released by an Egyptian submarine, which was then amended to an Iranian submarine, and then perhaps credited to those who simply meant harm to patrolling US warships or multi-national tanker traffic. Gestures in shipboard security for bombs aboard vessels or other waterborne threats appeared in the operating manuals of commercial carriers thereafter, but piracy was still deemed the primary threat and definitely the maritime crime that captured the imagination of the general public.

Then came the hijacking of the Achille Lauro in September 1985 with the shameless killing of a wheelchair-bound American citizen. This maritime outrage hit the United States exactly where it wasn’t expected, and the Country responded with legal predictability…Congress passed a law (prompting one critic to assert, “If the terrorists don’t get you, the lawyers will.”) The International Maritime & Port Security Act, P.L. 99-399 of August 27, 1986 re-designated the most over-worked, over-tasked federal law enforcement agency, the Coast Guard, to accommodate its several front taskings. These also included updating some WWII Era authority about the Coast Guard’s Domestic Port Facility Safety Program and re-discovering the McCarthy Era’s Magnuson Act of 1950, which authorized the President to take necessary measures to safeguard vessels, harbors, ports, and waterfront facilities in the US against destruction, loss, injury, sabotage, or subversive acts. To the credit of the Coast Guard, they met the Congressional mandate using the model of the Captain of the Port (COTP) and Port Readiness Committees to involve other public agencies and stakeholders. However, the spike in maritime threat consciousness from the Achille Lauro event faded over time. Even the Navy’s 24/7 Anti-Terrorist Alert Center in Washington set up in the aftermath of the hijacking quit answering the phone.

Operations Desert Shield and Storm did not re-introduce the terror from the sea threat. (As I was in the process of being recalled, I received a telephone request to help with a Fortune magazine article not on maritime terrorism, but on the impact of piracy worldwide. It was so popularly received that the article was reprinted in 11 different languages by Reader’s Digest.) Public and commercial mariners received trendy theoretical training in C3 (Command, Control, Communication networks); contingency planning; and preparedness training through prevention, planning, and punishment. However, it was well understood that the criminal justice system of the coastal nations where most acts might occur wouldn’t even deal with a terrorist incident.

Next month I’ll talk about how nations address maritime terrorism with treaties and legal code.

Keith
F. Graham recently retired from 35 years as an adjunct professor at the
California Maritime Academy where he taught International Maritime Law;
Admiralty; Maritime Environmental Law; Business Law; and Engineering
Ethics. He presents maritime law seminars to Pacific Rim audiences and
governmental authorities, which include specialized training on piracy,
maritime terrorism, and countermeasures.

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EDITORIAL

Pacific Maritime Magazine California Contributing Editor Karen Robes Meeks spent several years covering the ports of Los Angeles and Long Beach, California for the Long Beach Press-Telegram and our sister publication Fishermen’s News.